Category: News Feeds

Irony abounds in the Age of Trump, and nowhere more abundantly than within his inner circle. And so we find a close associate of a man who is president today because he used to gleefully fire people on television now in danger of (it has to be said) a rather gleeful firing at the hands of the very activist investors Trump’s SEC is trying to silence.

“With Mr. Barrack’s track record and personal issues, no reasonable, fiduciarily-aware public company Board of Directors would select Mr. Barrack as C.E.O. of Colony or any other public company today.”

A child of the ’90s, I always wanted to be an attorney, likely as a result of my exposure to network television programs. Shows like Ally McBeal, L.A. Law and, of course, Law and Order, made being a lawyer look suspenseful, profitable, and even glamorous. High-rise offices, mysterious fact patterns, and intraoffice love affairs were enough to get me to commit to the answer of “lawyer” when asked what I wanted to be when I grew up.

Honestly, at the time, I had little idea as to what being a lawyer entailed. Growing up, I did not know any lawyers. My parents were schoolteachers, and my friends’ parents were police officers, fire fighters, and small-business owners. To me, becoming a lawyer — that was making it big. That was the ultimate sign of success.

As a child, I saw television portray attorneys as successful individuals, comfortably compensated, and always busy. The prime-time episodes did not show the grittiness of lawyering, the exhausting law school experience, the excessive student loans, the mundane internships, or the employer frustrations. Yet despite now having witnessed the grave differences between real life and fiction, I could not imagine having any other career.

This past week, I had the privilege of returning to my high school to speak to the senior public-speaking class regarding my career path. The class, filled with ambitious students reminiscent of my own classmates, seemed honestly interested in my law career. Many of them stated confidently that they wanted to become lawyers. Niceties aside, they asked pertinent questions about which cases I found interesting, how I was trained, and, of course, how I was paid. What  interested me the most were their specific desires to practice in specific fields including divorce, criminal defense and personal injury (sadly none stated elder law or trusts and estates).

I questioned the students who had expressed their desire to become attorneys. I wanted to know why they had chosen the field and why, at the age of 17, before any college coursework, they were so convinced that it was right for them. The consensus was that being a lawyer was deemed a good job and one that presented itself as stable and successful. Interestingly none of the students were able to specifically tell me what being a lawyer entailed. The day–to–day of lawyering was unknown. I explained that sometimes I write, sometimes I argue, and often I meet with clients and try to problem solve.

Without a doubt, stories of litigation entertained the students and promoted many questions. The drafting and research, not so much. In speaking about my educational path, I noted that I had always wanted to become a lawyer but had also loved theater, which became my undergraduate major and also the subject of a graduate degree before law school. Although I took a break from my childhood plans, I eventually returned to them and went to law school. Speaking with the students made me think about why. It was not easy to go to law school. I had a young family, I had a baby, I had loans, and I had other responsibilities. In thinking about it, the answer I came to was simple and in many ways the same as it was when I was in high school.

To me, being an attorney means being educated. The law requires that you learn how to write, something I emphasized to the students. It provides a method for thinking and analyzing. You may not always like the legal subject that you are studying, but being a lawyer gives you a path to attack the subject. The education promises success -– at some level — and a membership in an exclusive club. A legal education leaves you more intelligent, more worldly, and , hopefully, compensated.

One student commented that I seemed happy with my career choice. And I am. Part of that goes to the fact that I work for myself, I set my own expectations, and I control what I do. The other part is reminiscent of my childhood goals, and I cannot explain who or what or why I lawyer, except that for me it represents the gold standard in education and, with that, the embodiment of success.

---

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. 

Last week, I wrote about the use of keyword search terms and whether they are, or should be, the preferred means to identify documents and information relevant in discovery.

Since it does not make a whole lot of sense to present a problem without also presenting a solution — at least that’s what one of my managers suggested to me early in my career — I thought it would be appropriate to review some of the alternatives to the use of search terms.

Whether you like it or not, artificial intelligence is entering our lives in ways that many of us could never have imagined. Digital marketing and promotion, the diagnosis of serious medical conditions, and autonomous vehicles are a few of the more glaring examples.

When the Federal Rules were written 80 years ago, did anyone ever consider that AI or machine learning would be used in the legal industry to predict the outcome of a legal case, to compare documents in multibillion-dollar business deals, or to identify documents and information in discovery?

That day has arrived. Whether or not you subscribe to the idea that machine learning is a form of AI, the fact remains that today we are able to parse the text of millions of documents in a fraction of the time — and a fraction of the cost — it took just 20 years ago.

The problem, it seems, is that many view predictive technologies like machine learning as unknown, unproven, imprecise, or incomplete. It’s the “black box” that either frightens or intimidates users. Some also say an inherent bias skews results one way or another.

The truth is that text is just text, words are just words, characters just characters. We put characters and words in documents all the time. We use the same characters and words over and over. There’s a lot of repetition, and, yes, some words are more meaningful, but regardless, patterns begin to emerge, and meaning can be derived, if not specifically, certainly conceptually.

Depending upon which dictionary you use, English has about 250,000 words in use. All of these words together take up about 500 pages of text, or, for the more data-minded readers, about 1 MB of data. It should not surprise anyone that we have figured out how to index, analyze, and categorize this relatively small number of words.

In case you did not see it coming, when it comes to machine learning and predictive technologies to identify relevant documents in discovery, it helps to think about it as something akin to advanced search techniques. We’re not talking about robots reading documents or any of the neural or deep-learning or theories of artificial general intelligence. We’re not yet to the point where machines, least of all in the legal industry, are reasoning and learning on their own. We’re basically talking about search terms on steroids.

So next time your legal technology project manager, your e-discovery expert or data scientist suggests that you use machine learning or TAR (or whatever we’re calling it that day), don’t worry so much about the black box; focus instead on what you’re trying to learn from the documents. The available tools can get you there faster, cheaper, and just as accurately.

---

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

As we sit down for Thanksgiving dinner on Thursday, one thing guaranteed to be on the menu almost as much as turkey is impeachment talk. If you’re a lawyer or law student, expect the non-lawyers in the family to turn to you for your expert opinion on this important subject. Whether they’ll agree with or defer to you is another story, of course — but you’ll certainly be asked.

If you’d like to field questions about impeachment in an intelligent and informed way, then I have a book recommendation for you: Impeach: The Case Against Donald Trump, by Neal Katyal. Longtime Above the Law readers know Katyal as the former Acting Solicitor General of the United States, current Hogan Lovells partner and Georgetown law professor, and leading Supreme Court and appellate advocate (with more SCOTUS arguments than any other minority group lawyer in U.S. history). Now he has a new title: Author.

Whether you agree or disagree with Katyal’s bottom line, Impeach is well worth your time: Cogent, clear, comprehensive, and concise. And it’s especially impressive considering that Katyal wrote it in under two weeks, which explains how he’s able to tackle a subject that’s still unfolding in real time.

I spoke with Neal this past Friday about the book, the impeachment process, and other Trump-related topics — such as whether the Supreme Court will tackle the issue of access to Trump’s tax records. Here’s a (lightly edited and condensed) write-up of our conversation.

DL: Before we turn to substance, let’s talk process — how quickly this book came together. You’re writing about developments that took place weeks or even days ago. Can you start by telling us about the genesis of the project?

NK: On October 4, about six weeks ago, I was at dinner in D.C. with friends, including Howard Yoon, a book agent. The month before, I had written, with George Conway, an op-ed about the Ukraine allegations for the Washington Post that said, in essence, “This is a big deal — and impeachment proceedings will happen.” I got lots of pushback on that prediction, but by October 3, it was clear I was right.

With the Mueller investigation, I did some television — even though television is not my thing, as a Supreme Court lawyer — in the hope that it could change the debate. It didn’t quite work out that way. So after the Ukraine news broke, I wondered: What could I do this time around that might be more effective?

Howard said, “You won’t want to hear this, but you should really write a book.” I told him, no way, it’s October 4, impeachment proceedings will begin in a month. But Howard insisted I could do it.

Lying in bed that night, I thought to myself: “I can totally do this.” I woke up and started to bang out a proposal. I needed a collaborator, so the next day I called Sam Koppelman and asked if he’d work with me. He said yes. I knew him because earlier this year, I got a call from Dean Gerken at our alma mater [Yale Law School], asking me to give the commencement address. I was, needless to say, freaked out. I showed a draft of the speech to my good friend Brian Koppelman, who suggested that I show it to his son Sam. Sam worked with me to revise that speech, and he did a beautiful job. He was the first and only call I made to seek out a collaborator.

DL: So what was your timeframe, in terms of how quickly you wrote the proposal, how quickly you wrote the book, and how quickly it went to press?

NK: The dinner was on Friday, October 4. We sent out the proposal early the following week, around Monday the 7th or Tuesday the 8th, and said we’d pick a publisher based on who could do it most quickly. Houghton said they could do it very fast, really wanted to publish it, and could commit to having it on shelves by November 26, so we went with them.

We promised them the manuscript by October 25 and actually submitted it within nine days, a week ahead of the October 25 deadline. It’s on trucks right now, being delivered to bookstores.

DL: Conveniently right before Thanksgiving.

NK: Thanksgiving is the traditional time for sitting down with extended family, many of whom you might not agree with politically, and talking about fundamental questions. On my website, you can download Thanksgiving “impeachmats” — placements inspired by the book that are designed to guide civil discussion about impeachment.

DL: You make a strong argument in favor of impeachment as opposed to waiting for the 2020 election. But are you at all concerned that a failed impeachment could actually strengthen Trump’s reelection prospects?

NK: I can see arguments both ways on the politics. The reason I wrote this book is because in this country, both the left and the right have cared too much about politics and not enough about our fundamental values. If you told me that impeachment was guaranteed to fail and to reelect Trump, I would say we still have to do it — even though I view Trump as an existential threat to our democracy. We have to stand for something. This is about who we are as a country.

DL: And are you worried about the possible weaponization of impeachment, such that we’ll go through “impeachment” pretty much every time the White House and Congress are controlled by different parties?

NK: Trump’s conduct is the core of what impeachment is about. It doesn’t matter where you’re coming from politically. The central argument of the book is to ask readers to think like law students, and reverse the identity of the parties. Republicans should ask themselves: What if Obama did what Trump is accused of doing? If you don’t impeach for this, you’ve read these clauses out of the Constitution altogether.

I do worry about impeachment becoming a regular event. But this is why the constitutional standard, “high crimes and misdemeanors,” is as high as it is. It’s not for maladministration or policies you don’t like.

So, for example, I’m as distraught as anyone in the country about Trump’s policies regarding child separation, but I don’t think they are an impeachable offense. It might be a grotesque violation of human rights, but it is not impeachable conduct.

For lawyers, think about fiduciary duty, putting your client’s interests ahead of your own personal ones. That’s how the Founders thought about the presidency: That the president has a fiduciary duty to put the people first. When the president violates that duty by trying to get personal help for his reelection from a foreign government, that’s core impeachment.

DL: Your book is prescriptive and normative; let’s turn to the predictive. How do you think this will all shake out? You point out that most Republicans and a sizable portion of the public opposed the impeachment of Nixon for a long time, and then his support collapsed in a matter of weeks. But do you think that can happen today, a much more polarized time?

NK: I do think it can happen today. Pundits consistently underestimate the American people and members of Congress.

I’m sick of the soft bigotry of low expectations when it comes to the American people. There have been so many times in our history when people said something couldn’t be done, and it got done. So I am optimistic that Trump will end up leaving office, whether through resignation or a formal vote.

DL: One of your proposed reforms is to pass a federal law requiring presidents and presidential candidates to release their tax returns before the election. The issue of access to Trump’s tax records — albeit in a different context, in terms of requests for them by a House committee and by Manhattan prosecutors — has now been decided by two circuit courts.

You’re an expert on the Supreme Court as well as impeachment. Any prediction as to whether the Court will agree to decide this issue and, if so, what the Court will rule?

NK: I think the Court is perhaps unlikely to hear these cases. When the president asks the Court to hear a case, generally they do — but there are a few things going on here that make it less likely than usual.

We’re in an election year, and this president hasn’t hesitated to declare war on the Court when he loses. So there will be some inclination among the justices to say, “Let’s not get into this.”

The arguments by Trump are just frankly bad, the court of appeals decisions are both narrow, and they both pretty much demolish the Trump arguments. So I could see the justices basically saying they are comfortable with where things wound up.

DL: Anything to share in closing, about the book or about impeachment?

NK: Impeachment is a hybrid animal, rooted in both politics and law. So much of the daily discourse is about politics; I wrote the book to focus on law.

We need to put the law back into impeachment discussions. We need to reflect on what it would do to our government if our commander in chief can go and get secret help for his reelection campaign from a foreign government. It’s not about whether this helps Pelosi or Schiff or Buttigieg, it’s about what this means for our country. This is why I hope people read the book.

DL: And read it they shall. Congrats again on the book, Neal, and thanks for taking the time to chat!

Impeach: The Case Against Donald Trump [Amazon (affiliate link)]

---

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

As technology continues to integrate itself into the practice of law, law schools are the latest to get on board with the digital revolution. We sat down with Ken Randall, former Dean of the University of Alabama School of Law and founder of distance learning company iLaw (a BARBRI Company), to discuss the rise of hybrid J.D. programs and how iLaw is helping law schools to expand their offerings in today’s digital era. 

You’re one of the pioneers in online learning for law schools. Can you give us a little bit of your background in this area?

I was Dean at the University of Alabama School of Law for 20 years, and during that time, the law school improved 75 spots in U.S. News and World Report. A large part of that improvement came from online resources. Alabama was among the first law schools to use distance education (education where the instructor and student are not in the same place) for non-J.D. graduate work. We took a residential tax LL.M. program and started incorporating distance learning, and this generated a lot of revenues to improve the school.

Around 2000, the ABA Section of Legal Education and Admission to the Bar named me the first chair of their Technology Committee. The committee that provided the origins of Standard 306, which regulates distance or online education at accredited law schools. That was the origins of online regulation in the J.D. space.

For those who aren’t familiar, what are hybrid J.D. programs and what does Standard 306 say about them?

Hybrid education simply means education that uses two platforms. There’s no strict definition of what constitutes a hybrid J.D. program — it’s really anything that’s a blend of residential and online learning. ABA Standard 306 is the relevant standard governing online education at accredited law schools. In its first iteration, the ABA allowed for only 11 credits to be offered by distance education. By 2018, that was expanded so that law schools can now offer at least ⅓ of the J.D. program online, and 10 of those online credits in the first year. Law schools can also apply to the ABA for a variance to do offer even more credits online. Today, law schools are experimenting and innovating with having a large part of their J.D. programs come from an online platform.

How many law schools are offering hybrid J.D. programs today?

In terms of schools that have true hybrid programs that offer a significant amount of the program online, there are probably 8-10 schools that stay within Standard 306. There are other schools that may have certain online courses, but have not designated an official hybrid program. There are also about five schools that have an ABA variance to do even more than ⅓ of their program online. So, in total, about 10 percent of the 200 ABA-accredited law schools are offering some kind of hybrid program or distance learning today. It’s important to note, though, that these schools also continue to offer their traditional programs. 

Why did you found iLaw and how does it fit into the hybrid J.D. landscape?

I created iLaw in 2013 because very few people were focusing on distance learning in legal education at the time. There were a lot of good online vendors focusing on undergraduate institutions, but not on legal education. iLaw was founded to provide law schools with an online learning platform.

We specialize in two areas. The first is providing J.D. content to law schools. We hire subject matter leaders from around the country, the ones who wrote the casebooks, to create online content, and we license that content to law schools. The second thing we do is partner with law schools on LL.M and J.M. programs for lawyers and non-lawyers, helping them to recruit students, design courses, and show courses through our learning management system. Those two strands come together in the hybrid J.D space, wherein we become a comprehensive partner for law schools looking to offer a hybrid program.

We’re now doing in the hybrid J.D. space what we’d been doing in the masters space for six or seven years. In 2017, we were acquired by BARBRI, and together we provide comprehensive solutions for students both during and after law school to help them prepare for and take the bar exam.

Why are more law schools moving to online learning and what do they stand to gain from it?

Legal education has been slower to move to distance education as compared to other disciplines. Standard 306 didn’t exist until 2002, and it wasn’t until 2018 that a law school could deliver at least ⅓ of the program was online. As you know, law school applications saw a sharp decline five or six years ago. The movement to innovate and experiment, including in the online space, has a lot to do with the fact that admissions numbers really started to disrupt legal education.

Going forward, I expect we’ll see more and more schools entering the online space with hybrid programs. We tend to focus on the number of credits a person can take online, but equally if not more important is what’s going on in that online classroom. That’s why iLaw is putting a lot of resources into the pedagogy of teaching online. Today we can really replicate online the kind of engagement and interactivity that a student has with a faculty member on campus. When people think of distance education, they think of a talking head and a PowerPoint, but that’s not the high-quality work we’re doing. There’s absolutely outstanding, innovative teaching going on online today. So much of the practice of law today is conducted online and through technology, so we’re marrying an online pedagogy with the online skills that the students will use when practicing law. There’s no better way to teach technology skills than through technology. 

There’s also a huge focus on inclusivity and opportunity and bringing down the cost of education. The optimal way to do that is through distance education. Full-time residential learning is not an option for a lot of people, so online learning really provides an inclusive and more diverse education. In terms of law schools, it’s also a great thing, because online learning provides a way for schools with diminishing applicant pools to diversify their revenue streams and improve their ability to draw students from broader markets.

Are there any success stories you can highlight for us?

The University of New Hampshire Franklin Pierce School of Law has been highly successful with online learning. They’re one of the top five intellectual property law schools in the country, but they’re in a place that’s more remote. They’ve secured a variance under Standard 306 to offer more than half their coursework online through a hybrid program, and this has been an extremely successful way for them to share their IP expertise with the rest of the country. It’s a great example of inclusive education, because innovators, people working in IP-related fields, and people working in tech now have a way to attend a top-5 IP law school through distance education.

What advice do you have for law schools who might want to partner with iLaw to expand their online programming or offer a hybrid J.D. program?

We believe that online learning has a place in every law school. This doesn’t mean it should replace traditional learning, but innovation is important, particularly if you want an inclusive and diverse student body or to attract non-traditional learners. Investigating online offerings is especially important for schools that have part-time or evening programs, because they play a critical role in educating non-traditional students.

Every law school has different challenges based on their goals, geography, or mission, so we don’t take a one-size-fits-all approach to online learning. You need to create a program that works with your particular challenges, and iLaw is an expert in doing that. What distinguishes us is that we only deal with law schools. Our staff are experienced in all aspects of legal education and we know how to design and build J.D. courses.

Can we expect to see law schools that are 100 percent online in the future?

It will ultimately depend on the ABA, but I would imagine that over the next five years there will be some accredited J.D. programs that are allowed to be 100% online. This won’t be to the exclusion of traditional learning, but rather giving faculty the freedom to experiment with online learning in addition to the traditional teaching they’re already doing.

It’s that time of year again where we look back, take stock of the year in law, count the bonuses rolling in and order another round. With that in mind, we’re throwing a holiday party here in New York, and you’re invited!

So, if you want to grab some drinks and food on ATL, RSVP here! This year we’ll have our party on December 10th at Houndstooth Pub on 8th Avenue at 37th Street.

Want to brag about your bonus? Share a war story? Take a break from studying for finals? Catch up with your favorite (it’s me, I know it is) ATL editor? All are welcome!

Here are the details:

When: Tuesday, December 10th
Where: 520 8th Avenue, New York, NY 10018
Time: 6pm – whenever we stop drinking

Remember to RSVP soon to guarantee your spot and we’ll see you in December.

---

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

I’m not big on apologies in my professional life. Mainly, because I’ve learned that nothing good ever comes of them. This tried-and-true life experience is compounded by the issue of having lady parts. I don’t want to make any broad, sweeping generalizations here (hint: I’m going to anyway), but I think those of us with lady parts apologize too much, and it’s not a good look. So, I have worked long and hard to eradicate this word from my knee-jerk reaction list (which includes such gems as, “Why in the hell would you do that,” “It’s your funeral,” and my patented look of equal parts of horror and disgust).

For me, an apology boils down to a formal admission of wrongdoing. I don’t know about you, but when it comes to my business partners, there’s about a zero chance I’m going to open myself up to that. Like dogs, bees, and toddlers, business partners can smell weakness, and who in the hell has time for that? I waste enough oxygen and brain cells justifying to business partners why we should do something when I’m in the right. That leaves me no time to grovel when I’m in the wrong.

The same goes for the word “sorry.” Because we lawyer types are word nerds, I’m in the camp that thinks there’s a subtle different between an apology and a sorry. Sorry implies an additional requirement of regret and remorse, and, frankly, I have even less time for that. Yes, I may have effed up, but I like to take the comparative negligence approach. If I’ve effed up, chances are that the business partner has effed up even more. Do you really think the sales rep is going to say he’s sorry for leaving out half the conversation he had with a vendor and making you look like a baboon’s ass in front of their counsel? I think not.

So I avoid apologies and sorry like the plague. Nor do I ever expect them from business partners because, again, that would imply some realization of wrongdoing or remorse. And there’s nothing quite like a half-assed apology that someone offers when they need something from you. “Kay, I’m so sorry I sat on this request for a month, but I really do need that merger agreement in four hours.” See? It’s like being punched in the intellect and the stomach at the same time.

But far worse than a half-assed apology, is a forced one.

We have this shiny, new sales SVP and like most of our sales SVP, this guy looks and sounds like he just got his learner’s permit. He’s been brought in to “shake things up.” Read: break the current system without any analysis as to what is working well. I give Thom about nine months before he’s out for failing to shake things up.

In the meantime, Thom has posted these larger-than-life, Technicolor canvas boards all over his team’s walls with such inspirational offerings as, “You miss 100% of the shots you don’t take,” and “Great things never come from idling in your comfort zone.” My personal favorite (the one over by the restroom) is “DREAM BIGGER.” I’m just saying that I probably wouldn’t have posted this one over by the men’s restroom. Snicker.

Well, I’m sorry to report that despite all these snazzy signs designed to inspire his team, I got into an epic showdown with one of Thom’s direct reports. I’m not going into the gory details, but let’s just say it involved changing a significant amount of language in a settlement agreement after it was approved by Legal. Let’s just say those changes were caught after the document was signed by the vendor but before we inked it, and a shitstorm ensued. The immediate result was me spending my Friday night and weekend renegotiating with a righteously (and rightfully) pissed vendor’s counsel. This resulted in me being righteously (and rightfully) pissed at Thom’s direct report for ruining my weekend because he decided that being a sneaky ass waffle was the way to go, rather than find an adult when the deal went south.

The following Monday morning, I was treated to a meeting in which the offending business partner was forced to apologize to me in front of Thom. Absent from the proceedings was an admission of wrongdoing or sense of remorse. Not only that, the ass waffle in question couldn’t make eye contact with me, and I got the distinct impression that it wasn’t remorse, but general pissiness, that was preventing him from looking me in the eyes. The lowlight (there were no highlights) was Thom wasting twenty minutes of my life explaining what it’s so important to take ownership of one’s mistakes and learn from them. I’m just going to say that I have lived through some awkward shit in my career (including having to coach a Midwestern-born VP that he couldn’t refer to his female employees as “gals” no matter how highly he regarded them), but this was up there.

Unsurprisingly, this didn’t fix anything. If anything, Thom’s direct report has been more of an ass waffle than before. He now starts every call and meeting with, “Kay, am I allowed to do the following, I wanted to check first, it’s not like I have ten years of experience in this field or anything …” in the snottiest tone imaginable. As if I’m the one who made this guy apologize or who tried to sneak one by his boss with a bogus settlement agreement. Nope, nope, nope. I’m just the poor sucker who spent her weekend fixing the mistake and her Monday morning listening to an SVP who clearly wanted to be one of those college basketball coaches making impassioned speeches to his team on the sidelines.

This experience, while mortifying, did give me a great outlet for my creativity. If you do happen to find yourself by the men’s restroom on the second floor of our building, you’ll find a new sign. It’s not as fancy as Thom’s airbrushed ones, but I think my, “SORRY IS NOT ENOUGH, SOMETIMES, YOU ACTUALLY HAVE TO CHANGE” sign gets the job done.

---

Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

In a recent column, I shared some IP-related takeaways from a major litigation finance-focused conference I attended recently, the LF Dealmakers Forum. A few weeks ago, the team behind that conference hosted the latest installment of the IP Dealmakers Forum, the 6th annual edition of that event. As always, it was a well-attended gathering of IP professionals representing law firms, IP owners, IP media, and litigation financiers. Like with LF Dealmakers, the organizers were gracious enough to allow me to attend in my capacity as author of this IP column. My attendance was limited to just two sessions, however, as I was laid low for days before the conference by a resilient bout of the flu. 

Truth be told, I was definitely not feeling my best during my short stint at the conference. But that did not stop me from enjoying two excellent panels on the closing day of the event. The first discussed how startups and established companies are looking to leverage their IP to drive growth. And the second addressed how corporations are approaching IP monetization in the ongoing challenging environment that today’s IP practitioners find themselves in. (I have no doubt that the other material presented at the conference was of a similar high caliber, just as I am sure that the one-to-one meetings that are an important part of the conference for attendees will lead to some actual deals.) In fact, these panels were the ones I circled when I first had a look at the conference agenda, so I was glad I was able to drag myself to catch those discussions. They did not disappoint.

For one, there were a wide range of perspectives offered by the panelists, with representatives from multinational corporations sharing the stage with domestic-based IP owners. Both panels featured frank discussion of the challenges the panelists and their companies face in an IP market defined by licensee skepticism and significant legal risk to IP assets, particularly in the United States, where both IPRs and Alice continue to confound patent owners looking to monetize their expensive (to obtain and maintain), wasting assets. As interesting as it was to hear about the challenges, however, it was more interesting to hear how the different companies represented are attempting to solve for them. As one can imagine, a number of different approaches were discussed.

We can start with the insights shared by the inimitable Raymond Millien, chief of IP for Volvo. He emphasized the importance of the IP department working closely with company engineers to identify promising internally developed technologies for outbound licensing, or to identify areas where inbound licensing could help improve the company’s product offerings. He also spoke about the importance of a company’s IP professionals helping to spread the message, both internally and externally, that the company’s IP is valuable. This marketing function may seem trivial in the grand scheme of things, but I for one agree that in a challenging IP environment it is important to maintain a company’s internal IP morale and competitive positioning as an innovator. Doing so helps give the company a head start when the IP environment becomes more favorable, while continuing to ensure the company’s inventors to keep inventing. His insights were echoed by others, particularly in terms of demonstrating how important it can be for startups to develop IP early on in their corporate lifecycle, in order to both attract outside investment and to give the company options if confronted by infringers or IP claims raised by others.

On the monetization front, it was interesting to hear certain themes echoed over and over. At the forefront was the message that companies interested in monetization are best served by having a concrete strategy in place for their efforts — one that takes into account how the company will handle the costs of their monetization efforts while remaining realistic about the expected returns and the company’s place in the IP ecosystem. At the same time, even representatives from non-traditional IP plaintiffs evinced a greater willingness to consider IP assertion, either directly or through divesting assets to non-practicing entities skilled in that endeavor. At least one panelist, Siemens’ Gerhard Tschiedel, spoke of an evolution within his company in its approach to patent divestment, including an increased willingness to divest assets generally — especially those generated by business units no longer offering products — as well as a willingness to at least explore use of litigation finance. Likewise, other corporate representatives indicated similar developments at their own companies, including at least one panelist who conceded that their company had come to understand that successful monetization will typically involve at least some level of investment by the IP owner, especially in the face of recalcitrant licensees. Interestingly, there was a consensus that while IPRs are a challenge for patent owners, they are also potential vehicles for unlocking patent value, considering that patents that survive IPR gain an immediate boost to their licensing prospects as a result.

Ultimately, IP conferences are only as good as the willingness of the presenters to speak frankly about how they and their organizations are dealing with the fluctuating market conditions in our field. At that level, IP Dealmakers did not disappoint, as both panels that I attended contained panelists that were more than willing to tell the truth about what is happening in the IP market. While it is sometimes more important as a conference attendee to confirm that the right questions are being asked, it is also helpful when fellow professionals at least attempt to share some of the answers to those questions. Yes, today’s IP dealmakers are dealing with a challenging market and significant obstacles to unlocking maximum value from IP. But it is heartening that there is a cadre of dealmakers still willing to deal. For those interested, seeking out those fellow dealmakers is more important than ever.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome. 

---

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

To be honest, I do not care if Don McGahn ever actually testifies in front of Congress. The House Judiciary Committee screwed up the McGahn testimony a long time ago. As soon as the Mueller report was released, they should have compelled him to testify. As soon as he refused, they should have arrested him and sued him. Instead of playing hardball with Donald Trump’s reluctant accomplice, Democrats played footsie. They didn’t sue him until August. We’ve had to wait until November for his whackadoodle, blanket assertion of executive privilege to be rejected by a court. The government will now appeal to the Supreme Court. Even if the Supreme Court eventually rules against him, McGahn’s actually testimony will basically be a series of questions McGahn refuses to answer, citing various privileges. Moreover, McGahn is a key witness to Trump’s obstruction of justice, a charge that Democrats have all but abandoned in their new search to convince Trump Republicans to finally do the right thing and hold the criminal president accountable.

We must continue to pursue McGahn on general principles, but his part in this drama is no longer relevant.

Former National Security Adviser John Bolton still has a part to play. The McGahn ruling gives all the legal cover Bolton needs to testify in the impeachment inquiry about his knowledge of the bribery scheme implemented by President Trump and his personal lawyer, Rudolph Giuliani. Unfortunately, Bolton still appears to be too chickenshit to do the right thing. From the New York Times:

Charles J. Cooper, a lawyer who represents Mr. Bolton, said that a court decision on Monday ordering another former White House official to appear before Congress under subpoena did not apply to Mr. Bolton because of the nature of his job. Mr. Cooper said Mr. Bolton would therefore wait for another judge to rule in a separate case that could take weeks more to litigate…

“Any passing references in the McGahn decision to presidential communications concerning national security matters are not authoritative on the validity of testimonial immunity for close White House advisers” whose “responsibilities are focused exclusively on providing information and advice to the president on national security,” Mr. Cooper said.

John Bolton is most well-known for his aggressive foreign policy positions. There’s nary a problem on the global stage that Bolton doesn’t think can be bombed or shot out of existence. But Bolton’s reticence to provide Congressional testimony — a timidity not shared by his deputy Fiona Hill or former ambassador Marie Yovanovitch or ambassador Bill Taylor or Lt. Col. Alexander Vindman or numerous others who willingly told the truth to the American people — exposes Bolton as a cheap schoolyard bully. He’s happy to fight when he enjoys an advantage of institutional strength over his adversary. But when the odds are even? When the outcome is unclear? No, Bolton shrinks from that challenge to hide under the apron of his lawyer.

To be clear, the argument from Bolton and lawyer Charles Cooper is a bad one. They’re contemplating the same kind of blanket immunity from testimony that was just rejected in the McGahn case. If anything, as not only a top adviser but a lawyer, McGahn has a stronger legal argument to avoid testimony all together. If McGahn can be expected to at least sit there and be asked questions, whether or not he’ll answer them, so must Bolton. Nobody is going to ask Bolton about national security secrets. Trump already declassified his solicitation of bribes; Bolton will just be asked to confirm the obvious.

But Bolton doesn’t want to do his duty — he wants to be a diva. He wants to drag this out. He wants to sell his book. He wants to avoid being seen by fellow Republicans as the man who sunk Trump’s presidency. John Bolton doesn’t want cover, he wants to run away like a coward.

Ruling Will Not Lead Bolton to Testify Soon, Lawyer Says [New York Times]

---

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

While we all understandably fixate on salary and bonuses, benefits can be just as critical to an attorney’s job satisfaction. To the extent we talk about benefits at all, we usually talk about parental leave expansions, but there’s a much wider array of offerings firms could be putting on the table for associates — benefits that will impact attorneys with far more regularity than parental leave. Unless you’re a Duggar or something.

Goodwin just announced its You@Goodwin program with a number of new benefits for employees in its U.S. offices. Given that we’ve not heard about bonuses from Goodwin yet, most associates probably saw the email to all and felt a little teased when it was just a benefits announcement, but keep your heads up because there’s some good stuff in here:

Expanded paid parental leave policy. All lawyers will be eligible to take up to 18 weeks and all GO! Team members will be eligible to take at least 12 weeks of paid child bonding leave. In addition, all birth mothers will be eligible to take at least six additional weeks of disability leave.

Of course parental leave is still getting top billing. At 18 weeks, the policy falls a little shy of some others, but it’s certainly following the trend toward expanded leave. The policy does reflect the industry-standard gap between attorneys and staff, which never makes sense because “having a baby” seems to have very little to do with post-graduate degrees. Even vacation tiers make sense — attorneys are under more stress day-to-day than staff and may need more vacation — but there isn’t much reason to tier parental leave. Maybe to reflect that they’ll be home more often during the first year? I guess that makes some sense, but is it six weeks’ worth?

The firm is also offering 12 weeks of leave to all employees for close family members with serious health conditions.

Modified vacation policy. Lawyers will move to flexible vacation, while full-time non-exempt GO! Team members and paralegals with five or more years of service will be eligible to accrue up to 20 days per year. There will  be no specified limit to the total number of vacation days in a calendar year for lawyers.

Unlimited vacation, y’all. Realistically though, attorneys are rarely going to take all 20 days offered to staff let alone something on top of that. But it does open the door to a mid-level ahead on hours to book the sort of once in a lifetime two-month trek that attorneys can only afford once they’re working too hard to actually take. If you find yourself in this boat, why not try to get to South America or Africa to close out the year?

For its part, the firm is serious about pushing associates to at least take some sustained vacation:

First, we will encourage all of you to take a vacation of two consecutive weeks per year, in addition to other vacation time you take during the course of the year. Taking the time to relax and recharge is essential –  especially in our fast-paced industry. We firmly believe that well-being and balance are fundamental to our ability to do our best work for clients.

Even if work schedules find a way to mess that up, just making the statement represents a critical shift in thinking about mental health that too few firms would be willing to put out there.

Substance abuse and depression assistance. As an early signatory to the American Bar Association’s pledge to advance well-being in the legal profession, Goodwin will continue to offer training on signs of substance abuse and depression, and how to get help.

One of the more welcome trends in Biglaw is the institutional commitment to the obstacles the profession puts on mental well-being. And while we’re on record as disagreeing with Goodwin’s decision to go teetotaler in an effort to curb both substance abuse and reduce the risk of sexual harassment, we’ve also lauded the commitment to getting ahead of the problem. The new program offers services to the entire firm and household members including on-site behavioral health counselors.

Speaking of health, the firm announced an expansion in voluntary health plan add-ons and expanded elder care and special needs services.

Perhaps most importantly for young associates, the firm expanded its student loan refinancing options.

Congratulations to Goodwin employees on their new benefits, and a reminder to attorneys everywhere to keep us abreast of any new benefits.

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.